January 28, 2010

Is the Supreme Court "legislating from the bench"?

The conservative mantra includes an oft-repeated bleat against liberal "activist judges" who supposedly are all the time commiting the offense of "legislating from the bench", usurping the rightful role of legislatures who are supposed to settle issues by a more democratic process because legislators are answerable to the electorate. So it came as a big surpise a couple of years ago when two researchers reported that court records showed conservative jurists are way ahead of liberal ones in "legislating from the bench". The records revealed that conservative judges reach out from the bench to overrule acts of the legislature far more often than do liberal judges.

The recent controversial decision by SCOTUS re free speechj and politics seems to be a classic example of conservatives "legislating from the bench". They have reached out to overturn many legislative acts passed into law over the years, including for example the McCain- Feingold Act.

Interesting that even a columnist in the conservative bastion of Forbes Magazine reacted to this decision with shocked disappoval.

And it will be even more interesting to see what the legislature - Congress - can do to counter this clear exmple of an activist judiciary interfereing with the legislative process.